G v Police HC Christchurch CRI 2009-409-126

[2009] NZHC 2327

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000126

G

Appellant

v

POLICE

Respondent

Hearing:         8 October 2009

Appearances: Appellant in Person

R M Thomas for Respondent

Judgment:      8 October 2009

JUDGMENT OF FOGARTY J

[1]      Mr  G    appeals  against  a  conviction  by  the  District  Court,  Judge

J S Bisphan, after a defended hearing of a charge under the Summary Offences Act

1981 that he, with intent or knowing that his conduct was likely to frighten or intimidate Mr Coutts, threatened to injure that person.  This was a charge laid under s 21(1)(A) of the Summary Offences Act.

[2]      By way of  context,  Mr  G    had  been  a  member  of  the  Woolston Working Men’s Club.  On a Saturday morning a member of that club, Mr Coutts, came on to Mr G  ’s property at about 8.15 am, knocked on the door and Mr G   came to the door.  Mr Coutts had come on to the property to deliver a judicial letter from the club.  He also had come on to the property with a small tape-

recording machine intending to record the ensuing conversation that he would have

G V POLICE  HC CHCH CRI 2009-409-000126  8 October 2009

with Mr G  .  The Judge found that Mr G   had a fair idea of what the letter was all about.  He found that Mr G   knew Mr Coutts was from the club. The Judge did not know what was in the letter.  The Judge then found:

[8]       I am satisfied that Mr Coutts went onto Mr G  ’s property, as he is entitled to do, because everybody gives an implied licence for people to go onto your property and make enquiries, and that is what happened here. Mr Coutts was entitled to go in on the basis of the implied licence, and he attempted to hand the letter to Mr G  , who had come out.

[9]       Mr G   refused it.   Mr Coutts put it on the ground, or threw it on the ground, saying, “That's sufficient delivery”.   Mr G   picked it up, stuffed it down Mr Coutts’ shirt, which is of course is a form of an assault,  but  it  does  not  form part  of  the  charge,  and  then  followed  the statements by Mr Coutts that he was taping this, and the statements by Mr Gallager that Mr Coutts was to, “Fuck off”.

[10]      Mr Coutts then left, or went to leave, and was about to leave, and Mr G   then picked up a piece of three by two about a metre long from a trailer, and held it, as shown by Mr Coutts in the witness box, and said that he was going to hit Mr Coutts with it.   Mr Coutts had been heading for the gate, but when this was said, turned and backed off, and ultimately left the property.

[11]     So that is my findings after hearing the evidence and assessing credibility as I have indicated.     Now the issue of defence of land and building is contained in s 56 of the Crimes Act, and it says that everyone in peaceable   possession   of   any   land   or   building,   and   that   would   be Mr G  , is justified in using reasonable force to prevent any person from trespassing on the land or building, or to removing them therefrom, if he does not strike or do bodily harm to that person.

[12]     Now there is no evidence of course that Mr G   struck or did bodily harm to Mr Coutts, but what he did do in my view was a threatened assault with a weapon, which of course is a serious offence.   Mr G   had the right to ask Mr Coutts to leave and Mr Coutts obviously did not leave absolutely immediately, because the tape indicates that Mr G   had said the words to, “Fuck off” on more than one occasion.    Mr Coutts then did, and the issue arises in my view is whether what Mr G   did was reasonable force in the circumstances, and in my view it was not.

[13]      As I say, threatening a person with a weapon is a threatened assault with a weapon which is a serious charge, so in my view the defence of land or building, if that is what Mr G   is raising, does not avail him here, because what he did was not reasonable force in the circumstances.    No other defence seems tenable here, such as self-defence or anything like that.

[14]      On  those  findings  then  I  find  the  charge  proved  beyond  doubt, because what Mr G   did, he must have known or intended to frighten Mr Coutts or intimidate him, with the threat to injure Mr Coutts, so I find the charge proved and the defendant will be convicted.

[3]      In my view paragraph [8] is in error of law.  To be fair to Judge Bisphan, the case law of implied licence is in some confusion as I discussed in the case of O’Connor v Police HC INV CRI 2008-425-000012 10 October 2008.  The leading decision in my view is the decision of the Court of Appeal in Howden v Ministry of Transport [1987] 2 NZLR 747.

[4]      For the reasons which I discuss in more detail in O’Connor, in my view the correct law is that where residences do not have padlocked gates or clear signs prohibiting anybody entering at the gate, except without express permission, then residential householders are giving an implied licence for people to go on to their property, in circumstances when the people going on to the property think it is reasonable to do so, under a test of reasonableness, whereby they would assume that there would be no objection from the occupiers of the residences for entering.  So, for example, if a postman has a registered letter which he simply does not want to put in the letterbox but wants to get a signature before he hands the letter over, the postman knows that it is quite reasonable for him to walk past the gate, up to the front door and deliver the letter personally.   If a burglar alarm has gone off in a house, passers-by know that it is reasonable to go and check to see whether or not the house is being burgled.

[5]      On the facts of this case, it seems abundantly clear that Mr Coutts knew that he would not be welcome on Mr G  ’s property.   He was taking a tape- recorder, not to record a friendly chat but to record what he knew would be a hostile response from Mr G  .  The very fact he took the tape-recorder, in my view, is compelling evidence that he knew that he would not be welcomed when he knocked on the door of the house.

[6]      In the course of the hearing Mr G  , who represented himself, sought to cross-examine  Mr  Coutts  on  his  lack  of  authority to  come  on  to  the  property. Mr Coutts defended his right to come on to the property by saying that when any member signs to join the Woolston Working Men’s Club they sign a paper to say:

When anybody signs to join our club they sign a paper to say that anything is hand delivered and he signed that paper to say that anything to his place can be hand delivered.

[7]      Mr G   endeavoured to pursue that cross-examination by putting it to him that since his suspension on 26 July 2008 which was about a month before this meeting he had never signed anything in the rule books and he complained that this entry was a breach of privacy.    The Court interpreted him as making a speech on this,  and  stopped  him.    Mr G    then  endeavoured  to  pursue  the  cross- examination by challenging that there was a form that one filled out, an application for membership, and challenging the content of the form or the rule book.  But his cross-examination was stopped by the Judge who said:

Just stick to the case in hand.

[8]      In my opinion Mr G   had been entitled to pursue the basis on which Mr Coutts went on to the property in the first place, for it is relevant to the question of the reasonableness of his response.  When judging the reasonableness of response the trier of fact is entitled to take into account whether the entry on to the property was a trespass or pursuant to a licence and whether in these circumstances it was deliberately provocative.

[9]      The  Judge  essentially  approached  the  question  of  reasonableness  of  the response of Mr G   from the basis that Mr Coutts had every right to be there.  I am satisfied that Mr Coutts did not have any right to be there.  He was a trespasser from the outset.  On the evidence he plainly went on to the property knowing that after Mr G  ’s suspension from the club a month earlier he would not be welcome.

[10]     That said, it is important when judging findings of fact on reasonableness to pay considerable respect to the trier of fact.   As Mrs Thomas pointed out in her submission, citing the decision of the Court of Appeal in R v Brightwell CA164/94

13 March 1995 where at page 4 the Court said:

… Whether the standard of reasonableness in such circumstances had been breached was a matter eminently suitable for determination by a jury whose members had the opportunity of seeing and hearing those present at the time.

…

[11]     Now there was a contest in this case as to whether or not Mr G   did pick up the piece of wood lying on the property.  He says he did not.  Mr Coutts said

he did.  The Judge agreed with Mr Coutts.  This Court on appeal is in no position to disagree with that finding of fact by Judge Bisphan.  Given that finding of fact there was  a  basis  for  Judge  Bisphan  to  find  that  the  response  of  Mr  G    (to Mr Coutts’  refusal  to  leave  after  he  had  repeatedly  been  told  to  leave)  was unreasonable.  However, I am left now uncertain as to whether or not Judge Bisphan would have made that finding had he proceeded in the analysis on the basis that I have found, namely that Mr Coutts was there illegally and provocatively, from the outset.  Because of that error of law I am entitled to substitute my own judgment or to send the matter back to be retried.

[12]     Mr  G    has  already  had  his  life  considerably  disrupted  by  this prosecution, the trial and now coming to the High Court on appeal.  I do not think it would be just that there would be another trial.  I am satisfied that notwithstanding the provocation, and accepting as I must the finding of Judge Bisphan that he did pick up the piece of wood, that his response was unreasonable.

[13]     Therefore on that reason alone the conviction should not be set aside.  But it does seem to me that these are the circumstances of this case.  There has been an error of law in the reasoning process.  The conduct of Mr Coutts was provocative. There was evidence before the Court that after this event Mr G   had made a complaint to the police of trespass by Mr Coutts.   He obtained a trespass notice, served it and says he was subsequently assaulted by Mr Coutts.  For these reasons it seems to me that to convict Mr G   in these circumstances would be wholly disproportionate.  I am applying the test in s 107 of the Sentencing Act:

107      Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[14]     I am satisfied that for all these facts the direct and indirect consequences of a conviction on Mr G   would be out of all proportion to the gravity of the offence.  So being satisfied, I am empowered then to discharge Mr G  .  I have had regard to the provisions of s 106 of the Act and in that regard have considered whether or not there is merit in there being any payment that the Court should make

Mr G   pay to compensate Mr Coutts for any emotional harm he may have suffered.  Plainly, on the findings of fact that I have already made there is no basis for that.

[15]     I have accordingly decided that I should proceed with a simple order which I now make, that Mr G   is discharged without conviction.  Mr G  , by reason of s 106(2) this is deemed to be an acquittal.  I also decide there is no basis for any orders for costs.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Respondent

cc: R J G